Employee Discipline

FROM BLOOMBERG NEWS, 22 MARCH 2016

March 14 — With a growing number of states having decriminalized marijuana, employers face some uncertainty on how to deal with the drug, attorney R. Scott Oswald, managing principal at the Employment Law Group, said March 14.

Speaking at the Society for Human Resource Management 2016 Employment Law & Legislative Conference in Washington, Oswald said an employer’s approach depends on many factors.

“All over the country we have different laws that are applying at the state level, and for a multi-state employer it is enormously challenging,” he said. While the national conversation may be moving toward an increase in legalization of marijuana, he said, federal law still prohibits it.

According to Oswald, the bottom line in the workplace is that employers can continue to terminate employees for failing a drug test. In states where marijuana use is legal, he said, “decriminalization is a defense to criminal prosecution and not an affirmative right to use.”

Considerations Under the ADA

Employers also will likely need to address whether they are willing to consider medical marijuana as a reasonable accommodation under the Americans with Disabilities Act, Oswald told conference attendees.

There are several medical conditions that are ameliorated or treatable with marijuana and qualify as disabilities under the ADA, he said. For example, he said, marijuana has proven effective for treating muscle spasms caused by multiple sclerosis; nausea from cancer chemotherapy; poor appetite and weight loss caused by chronic illness, such as HIV or nerve pain; seizure disorders; and Crohn’s disease.

“The key here is flexibility,” Oswald said, adding that employers will never have to allow for an employee who is impaired by drug use and can’t perform his or her job.

Best Drug-Testing Practices

For drug-testing policies in general, Oswald recommended the following:

Comply with state law. For example, some states require employers to use state-licensed labs for testing, and some states have banned random drug testing and blanket drug testing.

Have the policy in writing, distributed to employees and signed by employees.

Never take disciplinary action against an employee without confirming the drug test result via a second test of the same sample.

Review the legality and appropriateness of the drug policy on an annual basis.

Separate the organization’s drug policy from its alcohol policy.

Oswald noted that employers are generally free to set their own drug policies, whether zero tolerance or otherwise. If an employee contests the legitimacy of testing results, he recommended employers make sure they are partnered with an experienced and reputable drug-testing company so that all procedures are sure to be followed, including compliance with chain of custody, privacy and state and federal regulations.

Employers also should direct an employee contesting results to contact the third-party testing facility.

Because Florida is an “employment at will” state, an employer does not need “good cause” to terminate an employee.An employee terminated without good cause, however, will be entitled to receive unemployment compensation benefits.Because the number of claims awarded to your former employees has a direct impact on increases to your company’s unemployment compensation insurance premium, you should take steps to ensure that benefits are not awarded to employees who were fired for misconduct.

An employee who is terminated because their performance is not up to your standards, or because they are simply unable to perform the job, is entitled to benefits.Likewise, an employee whose excessive absenteeism is a result of a health issue is eligible for benefits.However, an employee who repeatedly, after warning, violates company policy is not entitled to unemployment compensation.That behavior qualifies as misconduct under the statute.

The key issue in unemployment compensation hearings (conducted when the employee applies for benefits and the company contests their entitlement) involving policy violations is whether the employee had notice that their behavior was unacceptable and was warned that future violations could result in termination.The best evidence you can present is a written warning, signed by the employee.

Remember to do the following:

(1)Put a warning in writing so that there is no dispute about what information was given to the employee.

(2)Note in the warning whether the employee has been verbally counseled for the same behavior in the past.

(3)State whether the conduct violates a company policy, and identify that policy.

(4)Have all employees sign a form acknowledging that they have received, understand and will abide by company policies.

(5)Have the employee sign the written warning, acknowledging receipt of it.You can include a space for the employee to make a statement if they disagree with the warning.

By following these steps, you can protect your company from being charger higher unemployment compensation premiums as a result of benefits awarded to former employees who continued to willfully violate company policy after repeated warnings.

Phyllis J. Towzey is among the select, first group of attorneys to become board-certified in Labor & Employment Law by The Florida Bar. Her firm provides employment law services to business owners, medical groups, non-profits, physicians, professionals and executives.